All posts filed under: Faculty Scholarship

LRW Faculty Summer Update: Legal Writing Institute Conference

This summer, Professors Carpenter, DeJarnatt, Margolis, Murray, Stanchi, and Tavares attended the 18th Biennial Conference of the Legal Writing Institute in Milwaukee, Wisconsin. Professor Kristen Murray shares a short summary of how she and the Temple Law Legal Research and Writing faculty are involved in the Legal Writing Institute. For news from our Legal Research and Writing Faculty, follow @TempleLawLRW.

Creating American Land: A Territorial History From the Albany Plan to the U.S. Constitution

A DISSERTATION PRESENTED TO THE FACULTY IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY RECOMMENDED FOR ACCEPTANCE BY THE DEPARTMENT OF HISTORY Adviser: Hendrik Hartog September 2018 “The rulers of Great Britain have . . . amused the people with the imagination that they possessed a great empire on the west side of the Atlantic. This empire, however, has hitherto existed in imagination only. It has hitherto been, not an empire, but the project of an empire.” Adam Smith, The Wealth of Nations 1 “A nation may be said to consist of its territory, its people, and its laws. . . . That portion of the earth’s surface which is owned and inhabited by the people of the United States is well adapted to be the home of one national family, and it is not well adapted for two or more.” Abraham Lincoln, Annual Message to Congress 2 “I take SPACE to be the central fact to man born in America, from Folsom cave to now. I spell it large because it comes large here. Large, and without mercy.” …

Classroom Seats

Charting School Discipline

Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students. We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too …

Soccer Players

Nudging the Public’s Health: The Political Psychology of Public Health Law Intervention

From menu calorie counts to counting youth concussions, in recent years lawmakers have designed new public health law interventions that attempt to nudge individuals toward better health outcomes by limiting choice, providing information and education, and changing norms and values. But why do we expect the general public to adopt and be informed by these new interventions, and pursuant to what theoretical framework? Utilizing a nationwide 2,000 participant survey sample that was developed and deployed by the author to evaluate socio-demographic differences within public support for recent public health law interventions, the Article engages recent interventions (from coercion to nudging) across food-diet, smoking, and youth sports TBI law domains, arguing that such interventions and their impacts are best understood through the lens of political-psychology. Particular attention is paid to race, gender, and ideological differences in public perception of public health law interventions and the role that such differences play in the transmission of legal norms and the adoption of such norms in sub-populations. To further explore the intersection of socio-demographic variables in the transmission and …

Irresolute Testators, Clear and Convincing Wills Law

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called “harmless errors” in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom. The reforms assume — as does the Wills Act itself — a fully-formed, fixed set of choices that the testator has sought to express in his will, choices …

Passports

U.S. Immigration Policy And President Obama’s Executive Order For Deferred Action

Both my parents were immigrants. I grew up in a working class suburb of Detroit where every family seemed to include at least one parent or grandparent who was an immigrant, from places all over the world including Mexico, Syria, and Iraq. So of course I admire and respect immigrants, as we all should, because every American is either an immigrant or the descendent of ancestors who came here from somewhere else. And we are told that even includes Native Americans. Whether we should admire and respect immigrants is not what the immigration controversy is really about. Given that we should admire and respect immigrants, the question at the heart of the controversy is, how many should we take? And specifically, should we accept everyone in the world who wants to come to the United States to live and work? Or alternatively, should we try to enforce a numerical limit on how many immigrants we accept every year? That is a binary choice, either no limits, or an enforced limit. And it is a hard choice, …

Temple-Law-Library

Mind the Gap

We are in the midst of a major paradigm shift in legal research—both how it is done and how it should be taught. For generations of lawyers, the process of legal research remained static, rooted in a bibliographic approach that reflected the print publication of legal materials. However, as legal sources have become digitized and migrated online, it is now impossible to talk about legal research from a purely bibliographic perspective. The organization of legal materials in digital databases is getting further and further away from the world of books it once replicated. The search box has replaced most print finding tools for legal research, and lawyers conduct most of their research electronically. Today, it would be irresponsible to teach legal research without a focus on electronic research, and many have abandoned teaching book research at all. In recent years, legal writing professors and law librarians have given much scholarly attention to questions of pedagogy and training in a world of online legal research. One question that poses a serious and ongoing challenge is that …

Courtroom

Lawyers, Power, and Strategic Expertise

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath . . . . Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper — rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It’s not just their ease with the language and the process that sets them apart. They dominate the space.” This empirical study analyzes the experience of the parties described above, specifically the power, representation, and strategic expertise they bring to a dispute. Our analysis of these factors clarifies how representation may be a solution to the access to justice crisis. We find that a representative helps most parties most of the time. We also find that the other party’s representation and the representative’s strategic expertise are significant factors for understanding representation for civil litigants. This …

Stock Market on iPhone

Financial Weapons of War

A new type of warfare is upon us. In this new mode of war, finance is the most powerful weapon, bullets are not fired, financial institutions are the targets, and almost everyone is at risk. Instead of smart bombs, improvised explosives, and unmanned drones –– economic sanctions, financial restrictions, and cyber programs are the weapons of choice. This is the reality of modern financial warfare. This Article offers an early examination of this new mode of war. It explores the new financial theater of war, analyzes the modern arsenal of financial weapons, highlights emerging legal tensions, and proposes key recommendations for current and future financial warfare. The Article begins with a general survey of the modern financial infrastructure, the emerging battlefield of modern warfare. Next, it provides a more detailed inventory of the financial weapons of war. It accounts for traditional weapons like economic sanctions, anti-money laundering regulations, and banking restrictions, as well as cyber weapons like distributed denial-of-service attacks, data manipulation hacks, and destructive intrusions. It also explains how these weapons are used in …

“Gruesome” Evidence, Science, and Rule 403

Can science step in and assist in Rule 403 determinations of “unfair prejudice”? When confronted with “gruesome” evidence, all too often autopsy photos or images of severe injuries, judges must assess whether there is a risk of unfair prejudice or misleading the jury and then, if the risk is present, “may” exclude the proof.1 Yet there is no court-dictated workable metric for assessing when either risk is present beyond boilerplate terminology such as whether the “[e]vidence… makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.”2 The standard is akin to that used to describe when material is obscene — an “I know it when I see it” approach to decision-making.3 This approach begets arbitrariness. That this is so may be seen by contrasting claims of unfair prejudice in criminal and civil cases. The default in criminal seems to be that of admissibility, demonstrated in the extreme …